Robert Crook v CITIC Pacific Mining Management Pty Ltd - [2023] FWC 2446

[2023] FWC 2446

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Robert Crook
v

CITIC Pacific Mining Management Pty Ltd

(U2023/3578)

DEPUTY PRESIDENT O’KEEFFE

PERTH, 22 SEPTEMBER 2023

Application for relief from unfair dismissal. Applicant unfairly dismissed. Reinstatement, continuity of employment and service, and restoration of lost pay ordered.

On 27 April 2023, Mr Robert Crook (the Applicant) made an application to the Fair Work Commission (the FWC) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with CITIC Pacific Mining Management Pty Ltd (the Respondent). The Applicant sought reinstatement, restoration of lost pay and maintenance of his continuity of service.

Background

The Applicant was employed by the Respondent from 20 August 2020 until 6 April 2023 as a Dump Truck Operator at the Cape Preston mine site.

On 25 March 2023 a fellow employee, Ms Sarah Kimber (Ms Kimber), made a complaint to the Respondent about the Applicant’s behaviour. Specifically, she claimed that the Applicant had, in late December 2022 or early January of 2023 during an end of shift bus ride, instigated a sexually explicit conversation with several other employees that took place around the seat in which she was sitting. During this conversation, the complainant claimed that the Applicant passed a mobile phone showing explicit images between herself and the passenger beside her in a manner such that they were able to clearly see the contents. Ms Kimber further complained that in early March 2023 at a light vehicle park-up area, the Applicant stared at her in a lewd manner and remarked to fellow employees “Cooore look at that”.

As a result of this complaint, the Applicant was called to a meeting with his supervisor Mr Greg Peillon and Mr Quinton Dowler on 25 March 2023 and asked to make an immediate written response to the allegations made by Ms Kimber. Having made this response, he was then stood down pending further investigation.

On 27 March 2023 the Applicant was called to a further meeting with Mr Jason Woolaston (Mr Woolaston), Area Manager for Load and Haul at Cape Preston and Mr Steven Reynolds, Manager of Employee Relations to discuss the allegations against him. At this meeting the Applicant was represented by Mr Andy Duffy, Organiser for the Australian Workers’ Union (AWU). The result of that meeting was that the Respondent undertook to investigate the matter further. The Applicant remained on stand-down but was flown home to Perth.

On 6 April 2023 a third meeting was held in the offices of the Respondent in Perth. Present were the Applicant, his wife, Mr Michael Reynolds, the Mining Manager for the Cape Preston Mine and Mr Peter Stillman, Manager of Industrial Relations for the Respondent. AWU Official Mr Duffy attended the meeting via telephone. The outcome of this meeting was that the Respondent terminated the Applicant’s employment.

The hearing

There being contested facts involved, the Commission is obliged by s.397 of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 2446
Decision Date: 22 SEPTEMBER 2023

CaseChat Overview and Summary

In the matter of Robert Crook v CITIC Pacific Mining Management Pty Ltd, the Fair Work Commission found that the Applicant was unfairly dismissed by the Respondent. The Applicant, a Dump Truck Operator at the Cape Preston mine site, was dismissed following allegations of inappropriate conduct, including sexually explicit conversations and the sharing of explicit images on a work bus. The Applicant denied the allegations and was supported by several co-workers who testified that they had not witnessed the alleged behaviour. The Commission found that while there was a culture of inappropriate activity on the work buses, the evidence did not sufficiently establish the Applicant's guilt regarding the specific allegations against him. Additionally, the Commission concluded that the Respondent's investigation process was inadequate, lacking rigour and failing to properly consider the Applicant's responses and evidence. Consequently, the Commission ruled that the dismissal was unjust, as it lacked a valid reason and was based on an inadequate investigation. The Applicant was ordered to be reinstated to his former position within seven days, with continuity of employment and period of continuous service to be maintained. A separate order for payment of lost remuneration will be issued after considering submissions from both parties on the amount of remuneration lost.

Orders